Riverside-Lawyer-Magazine-volume-65-8-September-2015

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(Probate Code §4236). A duty to account to the principal may be imposed upon the attorney in fact by the principal, upon request of the conservator, or the principal’s successor in interest after death. Finally, common sense says that the existence of a power of attorney should not be kept a secret. While the original document may still be kept under lock and key at the attorneys’ office, family members should be made aware of who has been selected as an attorney in fact, when that power becomes effective, and the limitations on the powers granted. Financial elder abuse is best prevented through carefully written and understood powers of attorney, and when family members keep each other accountable. Jack B. Osborn is a partner with Brown White & Osborn LLP specializing in probate matters. Riverside Lawyer, September 2015 7
Grandparent Visitation The last time Riverside Lawyer addressed the topic of elders and the law, I wrote about the issues grandparents face when they become the primary caretaker for their grandchildren. 1 This time, I am addressing the flip side of this problem: grandparents that spend too little time with their grandchildren. In many single-parent households, one parent has the lion’s share of custody time with the children not just to the exclusion of the other parent, but often to the exclusion of the other parent’s extended family. Oftentimes the custody arrangement comes about as a result of orders from the family law or juvenile courts, but just as often it can come around informally by necessity or design – either through the agreement of the parents, concealment by the custodial parent, or the unavailability of the other parent due to physical location, incarceration, or death. Regardless of how the custody situation comes about, it is problematic from a child development perspective because it essentially blocks off half of a child’s total identity. If a child perceives a parent as acting maliciously or contemptuously towards the other parent or the other parent’s family, it is not a far leap for the child to infer that some part of them is bad or worthy of contempt. To provide some relief for children in these kinds of situations, the Family Code contains several provisions to keep children connected to significant family members despite (or sometimes because of) the wishes of one or both parents. Although significant family members come in many different forms – siblings, stepparents, aunts/uncles, legal guardians, etc. – for purposes of this article, I shall focus primarily on the laws that affect grandparents. Keep in mind also that this is about visitation through the Family Law Court; other similar issues may lead grandparents to petition for adoption or legal guardianship through Juvenile or Probate Courts. Family Code 3102 – Grandparents through a deceased parent If the relationship between grandparent and grandchild is becoming estranged due to the death of the connecting parent, Family Code 3102 gives the court the power to order visitation provided that visitation is found to be “in the best interest of the child.” Grandparents do have a special status under this code section in that they 1 “When Grandparents Become Parents,” Riverside Lawyer, June 2012 (published as Christopher J. Buechler) 8 Riverside Lawyer, September 2015 by Christopher Marin do not need to establish any previous amount of contact with the child before the application for the court to consider whether it would be in the child’s best interest (although having a prior relationship would certainly help establish that a continued relationship is in the child’s best interest). However, this section does not apply if the child is adopted by anyone other than a stepparent or grandparent. Family Code 3103 – Grandparents through parents in a dissolution, separation, custody or parentage action Family Code 3103 would probably provide the most common route for grandparents to petition for visitation with their grandchildren. As such, this code section also has quite a bit of nuance for the petitioning grandparent. First, the court does have to establish that the visitation is in the best interest of the grandchild. Second, the court must factor in whether the grandparent is subject to a domestic violence restraining order in making a best interest determination. Third, the grandparent must notify all parents, stepparents and other physical custodians of the grandchild by certified mail of their petition. Fourth, the agreement of both parents creates a rebuttable presumption against the visitation being in the child’s best interest. Fifth, the visitation cannot conflict with the custody or visitation of birth parent who is not a party to this action. Sixth, the visitation cannot serve as a basis to petition or challenge for a move-away order, but it shall serve as a factor for the court to consider. Finally, the grandparent visitation may allow for a reallocation of custody time for purposes of a parental guideline calculation, and either the parent or grandparent may be ordered to pay support for the transportation and basic necessities for the child associated with the visitation. Family Code 3104 – Miscellaneous issues conferring standing to grandparents If neither Family Code 3102 nor 3103 apply to the grandparent seeking visitation, they may find authority granting them standing to petition the court under Family Code 3104. Family Code 3104 applies only to grandparents and requires the court to make two findings: 1) that there was a preexisting relationship between grandparent and grandchild such that there is a bond created that visitation would be in the best interests of the child, and 2) the balance of the interests between hav-
Page 1 and 2: September 2015 • Volume 65 Number
Page 3 and 4: Mission Statement Established in 18
Page 5 and 6: Barristers President’s Message 4
Page 7: Creating Powers of Attorney to Prev
Page 11 and 12: Elder Abuse Prosecution and Prevent
Page 13 and 14: To Preserve and Protect Estates for
Page 15 and 16: The Capacity Declaration: Forms GC-
Page 17 and 18: An Overview of Civil Causes of Acti
Page 19 and 20: Safeguarding the Elderly by Mary Mc
Page 21 and 22: authority with proof of vaccination
Page 23 and 24: Age Discrimination By Any Other Nam
Page 25 and 26: DRS Mediator Profile: Rob Schelling
Page 27 and 28: 26 Riverside Lawyer, September 2015
Page 29 and 30: Classified Ads Office Space - Grand

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